July 10, 2006

Chief U.S. District Judge Thomas F. Hogan said members of Congress are not above the law. He rejected requests from lawmakers and Democratic Rep. William Jefferson to return material seized by the FBI in a May 20-21 search of Jefferson's office....

"No one argues that the warrant executed upon Congressman Jefferson's office was not properly administered," Hogan wrote. "Therefore, there was no impermissible intrusion on the Legislature. The fact that some privileged material was incidentally captured by the search does not constitute an unlawful intrusion."

The only question is, who will be the first to call this an activist ruling, the House GOP or the House dems? ;)

Honestly, you had to feel sorry for the House Counsel's office for the pitiable task of writing the brief for the House's position. It must have been like the SG's office writing the brief for U.S. v. Nixon; how do you form an argument for a position utterly devoid of merit?

Matt, your wife is right. The rumors I've read say that Jefferson is buying time and trying to make deals that keep the feds from pursuing his family. I hope his wheeling and dealing doesn't work; the family is the force behind a host of problems in NOLA.

A lot of great quotes in the decision, including: Congressman Jefferson’s interpretation of the Speech or Debate privilege would have the effect of converting every congressional office into a taxpayer-subsidized sanctuary for crime. Such a result is not supported by the Constitution or judicial precedent and will not be adopted here. See Williamson v. United States, 28 S. Ct. at 167 (“[T]he laws of this country allow no place or employment as a sanctuary for crime.”)

"Simon [asks] how do you form an argument for a position utterly devoid of merit? Shouldn't any lawyer who can't be in another line of work?"

I have certain luxuries in life,and one of them is that I cannot and will not defend a position - in politics, law or fact - which I know to be wrong. Every person may be entitled to a defense, but they are not entitled to the twinkie defense. If I were counsel to someone I discovered were guilty, I would resign as their counsel; if I were assigned counsel to someone I knew to be guilty, I would resign from the bar before I willingly defended them. The idea that of being responsible for freeing a guilty man off the hook on a technicality should fill most human beings - and particularly law students - with dread.

It is one of the most unfortunate imperatives of our Constitution - although I stress that it is an imperative, and I do not dispute it - that substantive guilt can be trumped by procedural missteps. I'd rather be a lawprof or a Judge. Fwer moral dilemmas, you see: the job of a lawprof is to teach the law, the job of a judge is to interpret the law and apply itto concrete facts, and the job of a lawyer is to invent the twinkie defense. It isn't hard to see why the joke goes that law school is "three years of hell to become the devil."

BTW - there are many positions which can be defended even if they're wrong. I think it's fair to say that there were genuinely two sides in Rapanos for example, and I feel that I could have argued the losing side, because I think there's some merit in it. In a lot of cases, particulary administrative law or statutory interpretation, it seems to me that you face a situation where you're not dealing with a plainly right or wrong answer. So that's one thing. But to have such an utterly meritless position as the House leadership's to defend? That's tough.

If you can get away from the facts of this case, there are meritorious arguments against allowing the prosecutorial arm of the executive branch to intrude into legislative affairs. It's just too simple to say "Nobody is above the law." The point that needs to be remembered is that the law, in the form of the constitution, sometimes provides protections from the law, in the form of statutes. Again, I'm not saying in this case that Jefferson should have prevailed. Just don't want the valid arguments and principles to get lost.

"If I were counsel to someone I discovered were guilty, I would resign as their counsel; if I were assigned counsel to someone I knew to be guilty, I would resign from the bar before I willingly defended them."

Anyone who does any criminal defense at all could tell you that, more often than not, a little investigation shows that your client is in fact most probably guilty. Nevertheless the law demands that the State must prove guilt beyond a reasonable doubt. Whatever "beyond a reasonable doubt" means, "probably guilty" does not satisfy this standard. That should leave enough gray area for a lawyer to do his or her duty without feeling compelled to withdraw. More troubling are those cases where your client admits guilt. The disciplinary rules tell you that in such a case you are still obliged to represent your client zealously within the limits of the law.If lawyers were willing to represent only those defendants who could convince them in advance of their innocence, the criminal courts would become as abuse-ridden as a one-party state. Society benefits from an effective criminal defense bar in the same way that a nation benefits from an effective opposition party to check the excesses of government.